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2017 (12) TMI 174 - AT - CustomsRefund claim - payment under protest - Whether, challenge or contest of the assessment order is condition precedence for claiming the refund of duty, especially in view of the fact that the duty was paid under protest, for non-consideration of the request of appellant for extending the benefit of N/N. 3/2005-C.E., dated 24.02.2005 by the authorities below, before assessment of the Bills of Entry? - Held that - a refund claim shall lie not only in a case, where the Customs Duty has been paid in pursuance of an assessment order, but also where the duty has been borne by the assessee - importer - It is noted that in the present case, the appellant had paid an excess amount of duty in the form of the CVD component paid by it under protest, while clearing the subject goods i.e. girders. Section 27 of the Act provides different situations or circumstances, under which the refund claim can be lodged and to be entertained by the proper officer. In this case, the appellant had objected to the assessment made by the authorities, in consonance with the audit objections raised for the earlier period. Further, the appellant had also represented the authorities regarding its claim for the exemption benefit. Thus, the appellant s case should fall in the second alternative provided in clause (ii) in Section 27 ibid, i.e. borne by him . On perusal of some of the sample copies of Bills of Entry available in the case file, we find that the same were assessed by the proper officer on 19.02.2009, without extending the benefit of notification dated 24.02.2005, as claimed for by the appellant, which has resulted in payment of excess amount CVD by the appellant. It is an admitted fact on record that the authorities below have not adhered to the request of the appellant, in passing the order(s), negating the claim of entitlement for the CVD exemption as contemplated under the notification dated 24.02.2005. Thus, under the circumstances of the present case, it has to be construed that filing of refund claim by the appellant itself, is to be considered as challenge of the assessment of Bills of Entry, which is detrimental to its claim. Whether, the ratio of judgment of Hon ble Supreme Court in the case of Priya Blue Industries 2004 (9) TMI 105 - SUPREME COURT OF INDIA and Flock (India) Pvt. Ltd. 2000 (8) TMI 88 - SUPREME COURT OF INDIA can be applied in the case of the appellant, in denying the refund benefit to it? - Held that - The issue involved in the case of Priya Blue Ltd, is distinguishable from the facts of the present case, inasmuch as, the issue raised before the Hon ble Supreme Court was with context with the ruling, as to whether, the words in pursuance of an order of assessment , necessary imply that a claim for refund can be made, without challenging the assessment, in an appeal. To answer such specific question framed therein, the Hon ble Supreme Court were pleased to hold that without the order of assessment having been modified in appeal or reviewed, a claim for refund cannot be maintained. In this case, since the appellant had borne the incidence of CVD, for which it had filed the refund application, we are of the considered view that that such application is maintainable under Section 27 of the Act - Similarly, the ratio laid down by Hon ble Supreme Court in the case of Flock (India) Pvt. Ltd. is not applicable to the facts of this case inasmuch as, in the said decided case an adjudication order was passed, which was appealable under the Central Excise statute, but the party aggrieved did not choose to exercise the statutory right of filing an appeal against such order. The rejection of claim of the appellant on the ground mentioned by the lower authorities is not sustainable - original authority should examine the issue, regarding entitlement of the appellant to the claimed exemption with reference to the defence submission and pass reasoned order on merit - appeal allowed by way of remand.
Issues Involved:
1. Challenge or contest of the assessment order as a condition precedent for claiming a refund of duty. 2. Applicability of the judgments of Priya Blue Industries Ltd. and Flock (India) Pvt. Ltd. in denying the refund benefit. Detailed Analysis: 1. Challenge or Contest of the Assessment Order: The primary issue is whether the appellant needs to challenge or contest the assessment order to claim a refund of duty, especially since the duty was paid under protest. The appellant argued that the authorities should have assessed the refund claim based on the admissibility of the exemption notification No. 03/2005-CE dated 24.02.2005, instead of outright rejecting it. The appellant cited the judgment in Bansal Alloys & Metals Pvt. Ltd. to support this argument. The Tribunal noted that Section 27 of the Customs Act, 1962 provides two alternatives for claiming a refund: duty paid in pursuance of an order of assessment or borne by the person concerned. The appellant had paid the excess duty under protest and had objected to the assessment made by the authorities. The Tribunal agreed that the appellant's case falls under the second alternative provided in Section 27, i.e., 'borne by him'. The Tribunal referenced the judgment in Aman Medical Products Ltd., where the Delhi High Court held that a refund claim is maintainable under Section 27 even if the duty was borne by the importer and not necessarily paid pursuant to an order of assessment. The Tribunal concluded that the filing of the refund claim itself should be considered a challenge to the assessment of the Bills of Entry, which is detrimental to the appellant's claim. The Tribunal also noted that the authorities had not addressed the appellant's request for CVD exemption and that the refund claim should trigger re-assessment. 2. Applicability of Priya Blue Industries Ltd. and Flock (India) Pvt. Ltd.: The Tribunal examined whether the judgments in Priya Blue Industries Ltd. and Flock (India) Pvt. Ltd. apply to the appellant's case. In Priya Blue Industries Ltd., the Supreme Court held that without modifying the order of assessment in appeal or review, a refund claim cannot be maintained. However, the Tribunal found that the specific issue of the second alternative in Section 27, i.e., 'borne by the importer', was not raised in that case. The Tribunal held that since the appellant had borne the incidence of CVD, the refund application is maintainable under Section 27. Similarly, in Flock (India) Pvt. Ltd., the Supreme Court held that it is not open to a party to question the correctness of an adjudication order by subsequently filing a refund claim. However, the Tribunal distinguished this case from the present one, noting that no speaking order was passed by the authorities regarding the appellant's entitlement to the CVD exemption. The Tribunal also referenced the judgment in Aman Medical Products Ltd., where the Delhi High Court held that non-filing of an appeal against the assessed Bill of Entry does not deprive the appellant of the right to file a refund claim under Section 27. The Tribunal noted that a Special Leave Petition against this decision was admitted by the Supreme Court, but no stay was granted, making the judgment applicable. Conclusion: The Tribunal concluded that the rejection of the appellant's refund claim on the grounds mentioned by the lower authorities is not sustainable. The impugned order was set aside, and the original authority was directed to examine the issue of the appellant's entitlement to the claimed exemption and pass a reasoned order on merit. The claim for a refund of the excess CVD payment will be considered as a consequence of this determination. The appeal was allowed by way of remand. Pronounced in the open Court on 28/11/2017.
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